The defendants, in their rejoinder, took issue upon this allegation. At the trial, the plaintiffs produced in evidence the following account rendered to them by the defendants, in the handwriting of Moses Savory : "Drs. The executors of the late H. Savory, in account with the estate of the deceased £ S d. Crs. 1835. ROSE v. SAVORY. It appeared from the evidence that the insolvent was in embarrassed circumstances at the time the advance of the 400%. was made to him by Moses Savory; that, on the 2nd January, 1832, when he executed the assignment, he contempleted taking the benefit of the insolvent debtors' act; and that he went to prison in November, 1833. On the part of the plaintiffs, it was submitted, that, the assignment to Moses Savory being illegal and void, as having been made voluntarily and in contemplation of insolvency, and being also a debt due to one of the defendants only, and therefore not the subject of a set-off against a joint demand due from both, that item must be withdrawn from the account, and consequently the plaintiffs were entitled to a verdict for the full fourth share. On the other hand, it was contended, that there was no such statement of account by the defendants with the assignees, and promise by them as executors to hold the balance to the use of the plaintiffs, as to enable the latter to sue at law; and that, at all events, the account, if taken at all, must be taken entirely, and then the acknowledgment would only extend to the balance of 1671. 3s. 10d. Deeks v. 1835. ROSE V. SAVORY. Strutt, 5 T. R. 690, Jones v. Tanner, 7 B. & C. 542, 1 M. & R. 420, and Gregory v. Harman, 1 M. & P. 209, 3 C. & P. 205, were cited. The jury found that H. J. Savory was in a state of insolvency at the time of the advance made to him by Moses, but did not then contemplate taking the benefit of the insolvent debtors' act; and that the assignment of the 2nd January, 1832, was voluntary, and made with a view of petitioning the insolvent court for his discharge. A verdict was thereupon taken for the plaintiffs for 6221. 3s. 10 d., leave being reserved to the defendants to move that a nonsuit might be entered if the court should be of opinion that the action was not maintainable; or that the damages might be reduced to 1671. 3s. 104d., if the court should think the plaintiffs entitled to recover to that extent only. Channell, in Easter Term, moved for a rule nisi accordingly, or for a new trial.-He cited Randle v. Blackburn, 5 Taunt. 245, where it was held that the whole of the account which a party gives of a transaction must be taken together, and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favorable to himself: and that not merely as evidence that he made such a counter claim, but as admissible evidence of the existence of the matter in his discharge which he asserts. The rule was granted only as to the reduction of damages. Platt, Comyn, and S. B. Harrison, shewed cause.The jury found that the assignment was voluntary and made in fraud of the rest of the insolvent's creditors. It was therefore void, and could legally form no item in the account. Taking therefore the whole account with this explanation, it shews that the entire sum claimed is due by the estate. The 4557. never could become the subject of a set-off in this action: if due at all, it was due to one of the defendants only. The account is prima facie, not conclusive, evidence, and is open to explanation or correction. In Randle v. Blackburn, no explanation or correction was offered. Channell, in support of the rule.-The security, it must be admitted, cannot stand: but the debt itself is not tainted. A debt therefore being legally due, and an account stated in which that debt is included, the plaintiffs cannot take the account in part and reject the remainder. The defendants have stated no account with the assignees save an account embracing this deduction. In Randle v. Blackburn, the account stated was the evidence only; here it is the foundation of the action. : TINDAL, C. J.-It appears to me that this rule ought to be discharged. The action is brought against the defendants as executors to recover the full amount of a legacy bequeathed to the insolvent and alleged to be remaining in the hands of the defendants. It is true the action would not be maintainable unless on an account stated under the hands of the defendants. Such an account was put in by the plaintiffs at the trial. On one side of this account the executors debit themselves with 6221. 3s. 104d., one fourth share of the legacy on the other side appears a claim of 400l. alleged to be due from the insolvent under a deed of assignment, and 55l. for interest thereon; and the defendants debit themselves with 1677. 3s. 104d. as the "balance due to the assignees." The only question is, whether the plaintiffs are so entirely and conclusively bound by this account that they must give credit for the 455l. I know of no rule of law which precludes a party from disputing, accounting for, or explaining any particular items of an account stated: and I do not see that the principle is at all altered by the cir 1835. ROSE v. SAVORY. 1835. ROSE V. SAVORY, cumstance of the credit side consisting of a single item only. The evidence shewed that the assignment was one that could not be supported in point of law-it having been given by the insolvent as a security for a loan of money advanced to him by one of the defendants to help to keep up his credit when he was in failing circumstances, and given, as the jury have found, voluntarily, and at a time when the insolvent contemplated petitioning the insolvent debtors' court for his discharge under the act. It was therefore void by the 7 Geo. 4, c. 57, s. 32. There is a precise issue tendered by the defendants in their plea as to the assignment, which is met by the replication: and upon the issue thus raised the jury have found in favour of the plaintiffs. The plaintiffs are entitled to recover the whole of that which the executors held for the use of the insolvent and the defendants cannot be permitted to set up a claim for a debt due to one of them. No fraud, however, is imputed to Moses Savory. PARK, J.-The case is decided by the finding of the jury that the assignment was voluntary and made with a view to a petition to the insolvent debtors' court. It is true the action depends upon the account; but that account is not so conclusive that it is not open to the other side to shew that a particular item or items of it cannot legally be enforced. GASELEE, J.-I entertained some doubt at first, inasmuch as the plaintiffs could not recover at all without producing the account. But, on further consideration, I agree with the rest of the court in holding that the verdict ought not to be reduced. VAUGHAN, J.-This being an action against the defendants as executors to recover the amount of a legacy, it could only be maintained by proof of an account stated: and the question is, whether such account is conclusive, or whether it is not subject to explanation and correction. I think that, the item on the credit side failing by reason of its illegality, the defendants are not entitled to the deduction. Rule discharged. 1835. ROSE บ. SAVORY. FOWNES v. STOKES. ADDISON, on the 4th instant, obtained a rule nisi for (a) See Blatch v. Archer, Cowp. 65, Adams v. Osbaldeston, 3 B. & Ad. 489. This objection was answered by the affidavits contra. (b) See Ryley v. Boissomas, 1 D. 383, Curwin v. Moseley, 1 D. 432, Tomkins v. Chelcote, 2 D. 187, (c) The affidavit stated that the |